BVA9511830
DOCKET NO. 90-52 705 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to a disability evaluation in excess of
30 percent for tinea infection to include the feet, toes,
hands, and left arm.
2. Entitlement to a disability evaluation in excess of
10 percent for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Tennessee Department of
Veterans' Affairs
ATTORNEY FOR THE BOARD
Christopher B. Moran, Counsel
INTRODUCTION
The veteran served on active duty from March 1946 to
September 1947 and from January 1959 to September 1977.
A historical review of the record shows that this case was
last remanded by the Board of Veterans' Appeals (Board) in
September 1993. At the time, issues certified for appellate
review included entitlement to an increased evaluation for
chronic obstructive pulmonary disease, evaluated at
30 percent and entitlement to an increased evaluation for
inactive rheumatic heart disease with hypertensive heart
disease, evaluated at 30 percent disabling. While in remand
status, a Department of Veterans Affairs (VA) regional office
(RO) rating decision in October 1994 granted an increased
100 percent evaluation for chronic obstructive pulmonary
disease, effective from April 4, 1990. Rheumatic heart
disease with hypertensive heart disease was also increased to
60 percent, effective from April 4, 1990. The Board notes
that the veteran's claim in this case was apparently filed in
December 1989. Other adjudicatory actions included the grant
of service connection for tinnitus at 10 percent. The RO
also granted entitlement to special monthly compensation
under 38 U.S.C.A. § 1114(s) (West 1991); 38 C.F.R. § 3.350(I)
(1994). The RO considered that the veteran's claims of
entitlement to increased evaluations for pulmonary and heart
conditions were satisfied and removed such issues from
appellate review. Thereafter, the RO forwarded remaining
issues 1 and 2 as noted on the title page to the Board for
final appellate consideration.
As it stands, the RO should obtain specific clarification
from the veteran in writing as to whether or not he wishes to
pursue on appeal the issues as follows: (1) Entitlement to a
disability evaluation in excess of 30 percent for chronic
obstructive pulmonary disease prior to April 4, 1990; (2)
entitlement to a disability evaluation in excess of
30 percent for inactive rheumatic heart disease with
hypertensive heart disease prior to April 4, 1990; and (3)
entitlement to a disability evaluation in excess of
60 percent for inactive rheumatic heart disease with
hypertensive heart disease.
Also, the Board notes that in September 1993 the Board
pointed out that a July 1991 rating decision denied the
veteran's claim for entitlement to a total disability rating
based upon individual unemployability due to service-
connected disability. Notice of disagreement for such action
was received in September 1991. A statement of the case was
not issued and such issue was not included in subsequent
statements of the case. Moreover, it was pointed out that
the veteran's August 1990 notice of disagreement and
September 1990 substantive appeal made reference to a
psychiatric disorder. A March 1992 statement from the
veteran referred to a claim of entitlement to service
connection for an inner ear disorder, with dizziness. The
Board noted that, as it appeared that the veteran may wish to
pursue a claim regarding such matters, they were referred to
the RO for appropriate action. It was pointed out to the RO
that a March 1982 rating decision denying entitlement to
service connection for "shaking of the hands (nervousness)"
was denied; however, it appeared that the veteran did not
receive notification of the determination and that the
finality doctrine and the principles set forth in Manio v.
Derwinski, 1 Vet.App. 140 (1991) may not be applicable in
this instance. The claims referable to a total rating, a
psychiatric disorder and inner ear disorder were referred to
the RO for all pertinent development including obtaining a
substantive appeal from the veteran regarding issues which he
intended to pursue on appeal in accordance with the
provisions of 38 C.F.R. § 20.302(c). The RO should continue
the development of such issues as instructed by the Board in
September 1993.
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by the veteran, in essence, that the
30 percent evaluation in effect does not adequately
compensate for the extent and degree of severity of his
service-connected skin disorder. He argues that his skin
disorder is not only extensive, but productive of exceptional
repugnancy. He also maintains that his hearing impairment
significantly interferes with his ability to understand
ordinary conversation, thereby warranting the assignment of a
disability evaluation greater than the currently assigned
10 percent.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against the grant of increased evaluations for bilateral
hearing loss and tinea infection of the feet, toes, hands,
and left arm.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.
2. The veteran’s bilateral hearing loss is manifested by no
more than certified findings noted on official VA audiometric
examination for rating purposes in April 1990 which revealed
pure tone threshold average in the right ear of 36 decibels
with speech recognition ability of 90 percent (level II) and
pure tone threshold average in the left ear of 64 decibels
with speech recognition ability of 62 percent (level VI).
3. The veteran's service-connected tinea infection is
primarily confined to his lower extremities with involvement
of the hands, arms, feet and chest, intermittently, and is
manifested by no more than constant exudation or itching,
extensive lesions or marked disfigurement; the evidence does
not show ulceration or extensive exfoliation or crusting and
systemic or nervous manifestations or exceptionally repugnant
disfigurement
CONCLUSIONS OF LAW
1. The criteria for the assignment of a disability
evaluation greater than 10 percent for bilateral hearing loss
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 3.321, and Part 4, 4.1, 4.85, 4.86 and 4.87,
Diagnostic Code 6101 (1994).
2. The criteria for the assignment of a disability
evaluation in excess of 30 percent for service-connected
tinea infection of the feet, toes, hands, and left arm have
not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 3.321, 4.1, 4.7, and Part 4, Diagnostic
Code 7806 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Assist
Specifically, we have found that the veteran's claims are
"well grounded" within the meaning of the statute and
judicial construction. 38 U.S.C.A. § 5107(a) (West 1991);
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The VA,
therefore, has a duty to assist the veteran in the
development of facts pertinent to his claims. In this
regard, we recognize that the evidence of record consists of
service medical records as well as numerous post retirement
service medical records as well as VA and private clinical
data that have been included in the veteran's claims file.
Such evidence provides a sufficient basis to address the
merits of the veteran's claims, especially in view of the
fact that there is no indication that there are additional
pertinent available records which the RO has not attempted to
obtain. Accordingly, no further assistance to the veteran is
required to comply with the duty to assist him as mandated by
38 U.S.C.A. § 5107(a) (West 1991).
II. Increased Ratings
With respect to claims for increased evaluations, the Board
points out that disability evaluations are based, as far as
practicable, upon the average impairment of earning capacity
resulting from the disability. 38 U.S.C.A. § 1155 (West
1991). The average impairment as set forth in the VA's
Schedule for Rating Disabilities, codified in 38 C.F.R.
Part 4 (1994), includes diagnostic codes which represent
particular disabilities. The pertinent diagnostic codes and
provisions will be discussed below as appropriate. The Board
points out that the rating schedule is primarily a guide in
the evaluation of disability resulting from all types of
diseases and injuries; generally, the degree of disability
specified or considered adequate to compensate for
considerable loss of working time from exacerbation or
illness proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1 (1993). When all the
evidence is assembled, the VA is responsible for determining
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either event or
whether a preponderance of the evidence is against the claim,
in which case, the claim is denied. Gilbert v. Derwinski,
1 Vet.App. 469 (1990).
III. Hearing Loss
Evaluations of bilateral defective hearing range from
noncompensable to 100 percent based on organic impairment of
hearing acuity as measured by the results of controlled
speech discrimination tests together with the average hearing
threshold level measured by pure tone and audiometry tests in
the frequencies of 1,000, 2,000, 3,000 and 4,000 cycles per
second. To evaluate the degree of disability from bilateral
service-connected defective hearing, the revised schedule
establishes 11 auditory hearing acuity levels designated from
level I for essentially normal hearing acuity through
level XI for profound deafness. 38 C.F.R. Part 4, §§ 4.85,
4.86, 4.87, 4.87(a), Diagnostic Codes 6100 to 6110, effective
December 18, 1987. The rating of hearing loss is by a
mechanical application of the rating schedule to the numeric
designations assigned for audiometric evaluations that are
rendered. See Lendenmann v. Principi, 3 Vet.App. 345, 349
(1992).
Specifically, a noncompensable evaluation is assigned for
defective hearing where the pure tone threshold average in
one ear is 43 decibels with speech recognition ability of
92 percent (level I) and in the other ear, the pure tone
threshold average is 75 decibels, with speech recognition
ability of 58 percent (level VIII), Diagnostic Code 6100. A
10 percent evaluation is assigned for a hearing loss
disability where the pure tone threshold average in one ear
is 36 decibels with speech recognition ability of 90 percent
(level II) and in the other ear, the pure tone threshold
average is 64 decibels, with speech recognition ability of
62 percent (level VI), Diagnostic Code 6101. The next higher
evaluation, a 20 percent rating, requires, at a minimum,
level III in the better ear and level VII in the poorer ear.
38 C.F.R. Part 4, Diagnostic Code 6102 (1994).
In this case, a historical review of the record essentially
shows that an initial RO rating determination in February
1978 granted service connection for bilateral high frequency
hearing loss, evaluated at a noncompensable rate based upon
evidence of hearing loss in service. As part of the
veteran's current reopened claim, an RO rating determination
in May 1990 awarded an increased 10 percent evaluation for
bilateral hearing loss based upon findings recorded on a VA
audiometric examination in April 1990.
A VA audiometric examination in April 1990 revealed pure tone
threshold average in the right ear of 36 decibels with speech
recognition ability of 90 percent (level II) and pure tone
threshold average in the left ear of 64 decibels with speech
recognition ability of 62 percent (level VI). In January and
March 1992, the veteran was seen at a VA audiology clinic
with respect to hearing aid adjustments. Thereafter, the
veteran underwent a VA audiometric examination in October
1993. At that time, pure tone threshold average in the right
ear was measured at 43 decibels with speech recognition
ability of 92 percent (level I) and pure tone threshold
average in the left ear was measured at 75 decibels with
speech recognition ability of 58 percent (level VIII).
Additional evidence shows that in a statement dated in
October 1994, Paul Talley, M.D., reported that the veteran
was under his medical care. The veteran complained of
hearing loss; however, no pertinent hearing loss findings
were noted.
As the Court recognized in Lendenmann v. Principi, 3 Vet.App.
345 (1992), "[D]isability ratings for hearing impairment are
derived from a mechanical application of the rating schedule
to the numeric designations assigned after audiometric
evaluations are rendered." Here, such mechanical application
establishes that a 10 percent evaluation is warranted under
Diagnostic Code 6101. The Board has considered the veteran's
arguments, but does not establish that the criteria for a
higher rating are met.
Consideration has also been given to the potential
application of the various provisions of 38 C.F.R. Parts 3
and 4, whether or not they were raised by the appellant as
required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991).
In particular, the evidence discussed above does not suggest
that the veteran's bilateral hearing loss presents such an
exceptional or an unusual disability picture as to render
impractical the application of the regular schedular
standards so as to warrant the assignment of an
extraschedular evaluation. In particular, the service-
connected disorder is not shown to require frequent periods
of hospitalization or markedly interfere with employment.
Therefore, the assignment of an extraschedular evaluation is
not warranted.
IV. Tinea Infection
The Board notes that the veteran's tinea infection is rated
analogously as eczema under Diagnostic Code 7806. For skin
disability manifested by ulceration or extensive exfoliation
or crusting, and systemic or nervous manifestations or
exceptional repugnancy, a maximum 50 percent schedular
evaluation is warranted. For exudation or itching constant,
extensive lesions, or marked disfigurement, a 30 percent
evaluation is provided.
A historical review of the record shows that service
connection was initially established for chronic tinea
infection, evaluated at a noncompensable rate based upon
findings in service as well as on a report of a post service
VA examination in May 1978 showing involvement of the feet
and toes. A rating decision in January 1989 awarded an
increased 30 percent evaluation for chronic tinea infection
of the feet, toes, hands and left arm based upon findings
recorded on a VA examination in November 1988 with
unretouched color photographs of the affected skin areas.
Evidence of record in support of the veteran's current
reopened claim includes a report of a VA examination dated in
May 1990 primarily for Agent Orange evaluation. At that
time, skin lesions were noted on both lower legs. On a
report of a VA dermatology examination in April 1991, the
veteran noted as history that his skin symptoms began while
in Vietnam during 1969. On objective examination, one
pustule was noted on the right upper chest with multiple
hypopigmented scars. Bilateral crusted lesions with
hypopigmented scars were noted on the legs. It was noted
that previous biopsy in 1988 from the leg area revealed
lichen simplex chronicus. Diagnoses included lichen simplex
chronicus-legs; and chronic folliculitis-chest, neck, face.
A private hospital record dated in October 1991 noted the
presence of changes of chronic dermatitis involving both
lower extremities only.
A post retirement service clinical record dated in September
1992 shows that a clinical evaluation of the extremities
including the skin was negative for any evidence of rash.
On a report of a VA dermatologic examination in October 1993,
the veteran reported as history having episodes of skin
infection of his lower extremity, pretibial region. He noted
that such symptoms had been present since Vietnam. It was
intermittent and usually occurred in hot weather. He noted
that, in 1959, he started getting pustules on the face and
the chest and that such resulted in hypopigmented scars which
had been present chronically. The areas on his lower
extremities which were intermittent and seemed to be
associated with hot weather were pruritic. An objective
examination revealed areas of hypopigmentation on his chest
with no lesions seen on his lower extremities or pretibial
region. There was no evidence of facial involvement at that
time. Diagnoses included probable chronic folliculitis of
the chest, neck and face with subsequent hypopigmentation.
It was also noted that, although not present, the veteran had
a diagnosis of lichen simplex chronicus.
A post retirement service clinical record dated in February
1994 shows that the veteran was seen at a podiatry clinic for
complaints of chronic thickening and peeling of areas of skin
of the feet. An objective examination included findings of
thick granular plaques on the distal digits with scaling.
In a statement dated in October 1994, Paul Talley, M.D.,
reported that the veteran was under his medical care. The
veteran's complaints included skin rash with pruritus. An
objective examination revealed the presence of
lichenification about the ankles, only.
Following a comprehensive analysis of the record, the Board
notes that the evidence shows that the veteran's skin
disorder primarily affects his lower extremities with
involvement of the hands, feet, toes, left arm and chest and
is manifested by no more than constant exudation or itching,
extensive lesions or marked disfigurement with acute
exacerbations, but without objectively demonstrated extensive
exfoliation or crusting and systemic or nervous
manifestations or exceptionally repugnant disfigurement
contemplated in the next higher rating.
The preponderance of the evidence is negative and does not
support the veteran's claim for entitlement to an increased
evaluation for service-connected tinea infection.
V. Other Consideration
Consideration has been given to the potential application of
the various provisions of 38 C.F.R. Parts 3 and 4, whether or
not they were raised by the appellant. We find that his
service-connected skin disorder does not more nearly
approximate the criteria required for a higher evaluation
under the above-noted code provisions; therefore, the lower
rating is to be assigned. 38 C.F.R. § 4.7 (1994). We also
find that the evidence discussed herein does not show that
the service-connected skin disorder presents such an unusual
or exceptional disability picture as to render impractical
the application of the regular schedular standards. In
particular, the record fails to show that the service-
connected skin disorder at issue has required frequent
periods of hospitalization nor is there indication of marked
interference with employment. Accordingly, the assignment of
an extraschedular evaluation under 38 C.F.R. § 3.321(b)
(1994) is not warranted.
ORDER
An increased disability evaluation for bilateral hearing loss
disability is denied.
An increased evaluation for tinea infection of the feet,
toes, hands and left arm is denied.
V. L. JORDAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.